Court: Checking Facebook on Your Work Computer Isn’t a Crime

That’s the opinion of the U.S. Court of Appeals for the Ninth Circuit, anyway. In a ruling by Chief Judge Alex Kozinski Tuesday, the court rejected the government’s broad interpretation of an anti-hacking statute called the Computer Fraud and Abuse Act.

Judge Kozinski, writing for an 11-judge panel, explained the stakes in the introduction of his ruling:

Many employers have adopted policies prohibiting the use of work computers for nonbusiness purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? This depends on how broadly we read the Computer Fraud and Abuse Act.

The government argued that CFAA targeted both hackers and people who are authorized to use a computer, but do so for an unauthorized purpose. The Ninth Circuit, however, ruled that the law doesn’t extend to violations of use restrictions.

“Were we to adopt the government’s proposed interpretation, millions of unsuspecting individuals would find that they are engaging in criminal conduct,” Kozinski wrote.

He went on,

Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by gchatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes. While it’s unlikely that you’ll be prosecuted for watching Reason.TV on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit. Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.

The ruling puts the Ninth Circuit at odds with the Fifth, Seventh and 11th circuits, which have adopted a broader view of the law’s sweep. Kozinski asked those courts to reconsider.

These courts looked only at the culpable behavior of the defendants before them, and failed to consider the effect on millions of ordinary citizens caused by the statute’s unitary definition of “exceeds authorized access.” They therefore failed to apply the long-standing principle that we must construe ambiguous criminal statutes narrowly so as to avoid “making criminal law in Congress’s stead.”

We therefore respectfully decline to follow our sister circuits and urge them to reconsider instead.

Judge Barry Silverman dissented, accusing the majority of taking a “plainly written statute” and parsing it in “a hyper-complicated way that distorts the obvious intent.” Judge Richard Tallman concurred with Silverman’s dissent.

A Justice Department spokeswoman didn’t immediately respond to a request for comment.